The opinion of the court was delivered by: Cedarbaum, District Judge.
AMENDED OPINION AND ORDER
These related admiralty actions, both of which were filed in
February 1990, arise out of the disappearance and presumed
loss of the M/V Tuxpan ("Tuxpan") in the North Atlantic in
February, 1987. Plaintiffs are shippers, consignees, owners,
and insurers of cargo that was lost when the Tuxpan
disappeared. Defendants Krupp MaK Maschinenbau GmbH ("Krupp"),
the builder of the Tuxpan's engine, and J.J. Sietas KG
Schiffswerft, GmbH & Co. ("Sietas"), the builder of the
Tuxpan, move to dismiss these actions for lack of personal
jurisdiction. Krupp, Sietas, and Germanischer Lloyd
("Germanischer"), a classification society that surveyed and
certified the ship, also move to dismiss these actions on the
ground of forum non conveniens. Plaintiffs move to transfer to
the Southern District of Texas the claims against any defendant
over which personal jurisdiction does not exist in this court.
have not shown that Krupp and Sietas are subject to personal
jurisdiction in New York or in Texas, the motions to dismiss
the complaint are granted, and plaintiffs' motion to transfer
is denied. I will not consider Germanischer's forum non
conveniens motion until the remaining parties have had an
opportunity to address the effect on that issue of the
dismissal of Krupp and Sietas.
The following facts pertaining to personal jurisdiction are
from the complaints and the affidavits and exhibits submitted
by the parties. Plaintiffs have made factual statements in
their memoranda of law which have no support in the complaints
or the affidavits. I do not consider those assertions.
The Tuxpan disappeared in the North Atlantic in February,
1987 en route to unidentified ports in Mexico and the United
States from Bremen, Germany (then West Germany). Its cargo had
been loaded in Bremen and in Antwerp, Belgium. The Tuxpan was
registered in Mexico and was owned by Tecomar, a Mexican
Most of the 128 plaintiffs in these actions are
corporations; a few are individuals. According to the
complaints, the corporate plaintiffs are registered and the
individual plaintiffs reside in the following countries:
forty-two plaintiffs in Mexico, seventeen in the United
States, eight in France, six in Germany, one in Switzerland,
one in the Netherlands, one in the United Kingdom, and
fifty-two in unidentified countries. Plaintiffs' counsel
states in an affidavit that sixty-nine plaintiffs are Mexican,
and thirty-two plaintiffs are registered or reside in the
United States. All three defendants are German corporations.
Germanischer has an office in New York and, accordingly,
concedes that it is subject to the personal jurisdiction of
Krupp has submitted undisputed affidavits that show that
Krupp manufactures engines in only one factory, and that that
factory is located in Germany. Plaintiffs do not allege that
Krupp has any office, property, or employees in the United
States. However, according to an affidavit from plaintiffs'
counsel, Krupp has an Illinois-based subsidiary with a New
Jersey office, and another subsidiary in Ontario, Canada.
Representatives of the Ontario subsidiary attended an
exposition in New York in 1989. Plaintiffs' counsel states
that he does not know to what extent either subsidiary acts on
behalf of Krupp or transacts business in New York. Krupp has
submitted affidavits stating that one employee of the Illinois
subsidiary operated an office out of his home in New Jersey,
but that that employee left the subsidiary's employ in 1989,
and that the Illinois subsidiary has not effected any sales in
New York since 1984. Krupp has also had a contractual
relationship with Golten Marine Co., Inc. of Brooklyn, New
York, but, according to its affidavits, Krupp has had no
transactions with Golten Marine since 1982.
Krupp advertises in maritime publications which are
distributed in New York and throughout the United States.
According to Krupp's affidavits, it placed its advertisements
with the publications' sales offices in Germany. Plaintiffs'
counsel states that Krupp's ads are identical to those of its
Plaintiffs' counsel also states, on information and belief,
that Krupp had an agency relationship with an unidentified
company in Houston which was terminated in or about 1988.
According to Krupp, its Illinois subsidiary has an agreement,
which it states is not an agency agreement, with a company in
LaPorte, Texas, which authorizes that company to conduct
service operations on marine engines and related products
manufactured by Krupp and authorizes the company to purchase
spare parts from the subsidiary at a discount.
Plaintiffs do not allege that Sietas, the builder of the
Tuxpan, has ever had any contact with New York. Sietas has
submitted undisputed affidavits showing that the Tuxpan was
assembled at its only place of business, its shipyard in
In 1987, Tecomar brought a proceeding in this district for
limitation of liability arising out of the loss of the Tuxpan.
Plaintiffs were parties to the limitation of liability action.
Defendants were not. According to plaintiffs' counsel,
"extensive substantive evidence was obtained and developed
which is relevant to the defendants' liability in the present
action." This evidence includes publications, pamphlets,
drawings, contracts, ...